Sent from my iPad
On Sep 20, 2012, at 5:46 PM, Bill Bartlett <william7 at aapt.net.au> wrote:
> At 8:01 AM -0400 20/9/12, Wojtek S wrote:
>
>
>> [WS:] But this does not seem to address the central claim of my
>> original argument, which is that the legal system as a whole acts as a
>> brake on any potential progressive legislation. It is not that we've
>> had much of the latter, or that we have progressive legislature held
>> back by reactionary judiciary - but rather that the existing legal
>> framework makes any reform that favors "common people" over elites
>> DOA, even if by some odd chance it passes in the legislature. That
>> fact by itself has a very conservative effect on the legislature - as
>> no rational person would be willing to expend his or her political
>> capital on measures likely to be overturned by courts after they pass
>> the legislature. This is not the issue of the common vs. civil law or
>> sources of law as you argue but rather the fact that the US
>> constitution guarantees very few rights to begin with, but those few
>> that it does guarantee are the private property rights. That makes it
>> much easier to overturn any legislation aiming to expand human rights
>> (i.e. one expanding the rights of common people over those of the
>> elites) on the grounds that it infringes on the constitutionally
>> protected private property rights.
>>
>> Again, this has little to do with technical or formal aspects of the
>> law, on which you seem to be concentrating, but with the substance
>> that favors elite private property ueber alles. It is like an uneven
>> playing field or an uphill battle - you can still play or fight, but
>> your chances of winning are drastically reduced. Nor does it mean
>> that the 99 percent cannot score an occasional victory, but for every
>> such victory the elites will score ten, which will more than nullify
>> the former.
>>
>> I would also like to underscore that the legal system is not the only
>> force pushing into this direction. There are others - the
>> legislature, the media, the punditocracy and their institutions,
>> organized religion, and most importantly - the powerful business
>> sector. But I raised the argument focusing on the legal system to
>> counter the liberal and left-wing arguments that put the blame
>> squarely on the executive branch of the government, especially the
>> POTUS. As I said before, the executive and legislative branches
>> appear more conservative than they otherwise would be due to the
>> conservative effect of the US legal system that has the capacity to
>> gut any legislation that threatens elite property and interests.
>
> There's a lot in what you say, though I despair that neither side of the argument is acknowledging the elephant in the room. Which is the influence of public opinion. Neither the courts, nor the legislature, nor the executive, operates in a vacuum.
>
> George Orwell once said something to the effect that the parliament may pass laws, but it is public opinion that will determine if and when any laws are actually carried out. The same applies to how the judiciary carries out its duties, it is greatly influenced by public opinion.
>
> Bill Bartlett
> Bracknell Tas
> ___________________________________
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk